A recent labour case involving an employee in Nova Scotia who was fired for masturbating at work is a complex intersection of employee misconduct, progressive discipline and alleged disability.
But it shows that the system does work sometimes.
An aircraft log controller with 18 years of service, represented by Unifor, was terminated for cause after he was repeatedly heard by other employees masturbating in a bathroom stall. The employee, identified only as AB in a decision written by arbitrator Gus Richardson, had worked for aerospace company IMP Group International Ltd., out of Halifax International Airport
IMP first became aware of AB’s activities in January 2016, after receiving multiple reports of someone “breathing heavily, making erratic movements and moaning” while in a bathroom stall.
In a meeting, the employer advised AB of these reports. He was told that, if the issue was medical in nature , he should inform the company’s human resources department. Instead, the behaviour ceased.
Two years later, In April 2018, the employer was again alerted to complaints of someone masturbating in the men’s bathroom. Employees reported hearing “heavy breathing, moaning and sounds consistent with orgasm.” One employee reported that the masturbation had become “more frequent and brazen.”
Following an investigation, AB admitted that he was watching porn and masturbating in the washroom stalls. He acknowledged that he had been warned and admitted that he lacked any exculpatory explanation.
After AB was terminated, Unifor made an effort to reinstate him, arguing that AB had a disability — a sex addiction — that required accommodation.
However, the arbitrator agreed with the employer in this case, and upheld the termination.
This is a case where the employer did everything right.
First, the company did not recoil at the proclamation of a disability. Many employers find themselves placating ridiculous workplace behaviour in the name of accommodation.
The employer challenged the opinion of registered counselling therapist Dr. Michael Buckley, who offered an opinion on whether or not AB was addicted to sex. IMP argued tha t there was no agreed list of signs or symptoms of sex addiction within the medical community. But more importantly, the company argued that nothing in AB’s behaviour established that his alleged sex addiction was disabling in any way.
Employers should not allow employees to claim disability as a shield for egregious behaviour and poor judgement. In this case, IMP questioned the legitimacy and existence of a
“disability.”
The employer also effectively initiated a record of discipline for the inappropriate conduct.
The union also attempted to argue that IMP had failed to establish that masturbation in the bathroom stall was grounds for termination.
However Richardson wrote that he was satisfied that the employee knew exactly what was being discussed in the initial, January 2016 meeting. He ruled that that meeting, as well as a follow-up with the union, counted as sufficient warning that the behaviour was unacceptable and was expected to stop.
Employers are required to maintain a workplace that is safe and free from harassment.
Mr. AB’s behaviour was disruptive and could be considered harassment. He violated the privacy and comfort of his colleagues. Some employees even said they were unable to use the washroom because of what they heard while there. Employers cannot ignore egregious behaviour, no matter how uncomfortable the topic may be.
Howard Levitt is senior partner of Levitt LLP, employment and labour lawyers. He practises employment law in eight provinces.The most recent of his six books is War Stories from the Workplace: Columns by Howard Levitt.
Copyright Postmedia Network Inc., 2019
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